Child custody and visitation rights are easily the most potentially explosive and divisive issue in a divorce case, even more so than issues of child support, spousal support, and division of marital "community" property.
And the legal details that control who will have custody and what kind of visitation rights a non-custodial parent will have (or if he/she will have them at all) are very complex and spread out across numerous different state statutes. Plus, the presiding Family Court judge has discretion to decide differently than what these laws would normally suggest, if it can be justified as "in the best interests of the child."
Thus, without expert legal representation, you are walking into a virtual landmine full of potential "legal surprises" that could adversely affect the outcome of the child custody/visitation process.
At San Diego Divorce Attorney, we understand how California child custody and visitation proceedings work, and we can help ensure a reasonable, fair outcome to your case that will uphold your rights under California law.
To learn more or for a free, no-obligation consultation, feel free to contact us today by calling 858-529-5150.
General Overview of Child Custody & Visitation in California
Before delving into some specific areas of child custody and visitation rights law in California, first let us give you a general overview of how the system works.
First of all, child custody can be either legal or physical, and the two need not coincide. Physical custody is simply where the child lives (with which parent), most of the time. In some cases, however, physical custody can be a 50-50 split.
Legal custody, on the other hand, refers to the right to make important decisions on behalf of a child: where he/she will live, attend school, go to the doctor, and the like. This also can be shared, but both parents do not have to collaborate on every decision, even then.
The non-custodial parent will normally have visitation rights of some kind, unless there was abuse or his/her influence or presence is considered "dangerous" for some reason. The kind and quantity of visitation ("parenting time") plans varies greatly, however.
And note that California also considers the rights of grandparents when it comes to visitation ("grandparenting time" in this case.)
California adopted the Uniform Child Custody Jurisdiction & Enforcement Act in 1973 (like many other states), which means it allows joint custody in certain situations, considers the child's wishes in making custody decisions, and otherwise complies with the elements of the act. And this also means that California will cooperate with other US states and even foreign countries in resolving interstate or international child custody/visitation issues.
There are numerous factors that play into child custody decisions in California, including a child's age, health, personal wishes, present school location, and the location of his/her friends and other relatives.
But whoever gets physical custody of the child, some kind of parenting plan will have to be agreed upon by both parents or else imposed by the court. That's where parenting time is allotted and scheduled. These plans can be modified down the road, but since that can be less than an instantaneous process, to say the least, it's best to establish a good, workable plan that can last for years to come from the beginning.
The general principle that Family Court judges follow in making child custody and visitation rights decisions is the "best interests of the child." But anything the court decides, even if unfair or based on false or incomplete information, will be labeled that by the court. We at San Diego Divorce Attorney are here to fight for and obtain what is truly in the child's best interests and what truly upholds the rights of parents.
Factors Used in Determining Child Custody
As mentioned above, both physical and legal custody will have to be determined by the court. Though these two need not necessarily coincide, they often do, or at least partially overlap.
The basic factors taken into account by the court in deciding both types of child custody include:
- The age of the child or children involved. A very young child, for example, might "need to be with his/her mother."
- The state of health of the child. The person with physical custody of a sick or disabled child must be able to care for him/her.
- The emotional bonds that exist (or don't exist) between the child and each parent.
- The financial, physical, and emotional ability of each parent to provide for the child's various basic needs.
- The present location of the child's home, school, friends, and other "community ties."
Contrary to popular opinion, California does not automatically give custody to the mother, nor to the parent of the same gender, nor to the parent with a higher/lower income. The state will not worry about religious stands or sexual orientation as deciding factors either. While there are a large number of factors taken into account, it is simply the "child's best interest" that the law says should prevail, which will not necessarily be what both parents (or either parent) want.
Third Party Custody
In some cases (relatively rare), the court may deem it not in the child's best interests to be in the custody of either of his/her parents.
In this situation, it is best if a relative or, perhaps, close friend, will volunteer to take custody of the child. The court would then have to review that person's qualification's and make a decision. Often, a grandparent might get custody in "third party cases," but it can be someone else as well.
If custody is granted to a third party, it is likely that both parents will have visitation rights and they may also both have to pay child support.
Formulating a "Parenting Plan"
In most cases, both parents are able to agree upon a "parenting plan" in regard to visitation rights ("parenting time"), or at least, after the court has decided on who gets physical custody of the child.
In this case, a court-appointed arbiter may also be involved in the "negotiations," though that is not always needed either.
If both parents are able to come up with a parenting plan, they then need to fill out various forms, sign them, have a family law facilitator or a lawyer review the form, get the presiding Family Court judge to agree to and sign the plan, and then submit the form to the Superior Court clerk.
But, in some instances, parents will have such tense disagreements over the parenting plan that all discussion breaks down. At that point, the court will have no choice but to intervene.
If custody is at issue, one parent will have to file for a custody order. This might happen during a divorce process, during a legal separation of annulment proceeding, in connection with a domestic violence incident, or in relation to a paternity dispute. In some cases, a child support agency or other government agency might file the custody request.
There are legal forms to fill out, have reviewed, and file before a court date can be set for a custody request to be considered. And papers would have to be served to the other parent at least 16 days before going to court.
If the judge decides in your favor, he will sign the child custody order; but without the judge's signature, you cannot take legal custody or get a legally enforceable parenting plan.
When the area of disagreement between parents of a child does not include who shall have custody, then it's just a matter of ironing out the other aspects of a parenting plan. But, again, the court will intervene and decide if parents fail to come to an acceptable agreement.
The parenting plan can vary greatly from case to case, but it will include at least such basic elements as the following:
- The physical location where the child will live (who will have physical custody.)
- A schedule stipulating the visitation rights of the non-custodial parent in order to contribute his/her parenting time.
- Who will have legal custody of the child, making major decisions in the child's behalf as he/she is growing up.
- Where the child will spend holidays, birthdays, vacation, and other special days and times.
- How the child will be able to have relations with other family members, relatives, and friends besides just his/her parents.
- A process outlining how adjustments to the adopted parenting plan can be made. This is like an "amendment" function that could avoid the need to go back to court for a new parenting plan for every minor change that may be necessary.
Finally, note that even if both parents can agree on all necessary elements of a parenting plan, that plan must be reviewed and approved by the court to be valid. The court prefers that parents agree to a plan on their own, but will intervene and impose a plan if parents are unable to come to an agreement.
Also note that a violation of a court ordered parenting plan is a serious offense. There can be legal consequences for flaunting a court ordered agreement. If a mother, for example, refuses to allow a father his rightful visitation time; or, if a father keeps on bringing a child home hours late after visitation, the aggrieved parent can file a complaint with the court and get the matter resolved.
Types of Visitation Under California Family Law
The state's stated concern with visitation (as with custody) is to put the interests of the child first. Unless there is some reason to think otherwise, the state will assume it is best for the child to continue a relationship with both of his/her parents.
But there are a number of different "types" of visitation in California. If both parents have joint physical custody (50-50) split, then visitation rights would alternate with custody. But that is not particularly common.
Here are the three major kinds of visitation rights orders a Family Court judge might issue:
- Unsupervised Visitation. This is "normal" visitation. It is simply a matter of the non-custodial parent having the right to spend parenting time with his/her child in accordance with the agreed upon or court imposed parenting plan.
- Supervised Visitation. With supervised visitation, the court will allow the non-custodial parent to have visitation time, but will require that the other parent, a child care agency professional, or some other trustworthy adult be present. This might be done because of a concern for the child's safety; but, in some cases, it is done (temporarily) to allow a child to feel comfortable while getting to know a parent he/she hasn't seen for a long time.
- No Visitation. In case where there has been domestic violence, child abuse, or child neglect committed by a parent, or if there is any other reason to reasonably fear for the child's safety and well being if he/she were to spend time with one of his/her parents, then in the best interests of the child, the court will order that no visitation rights be granted to the non-custodial parent.
About "Virtual Visitation"
In our technologically advanced age, visitation is not always a matter of being physically in the same location. Today, there are times when "virtual visitation" is allowed between a parent and child. This would be done over the Internet, perhaps on Skype or through another site offering web-cam-based contact. It can be done on one's laptop, desktop, smartphone, or another connected device.
It is better if "actual" visitation can occur, rather than merely "virtual;" but given a parent's being far away for work or military duties, virtual visits are better than no contact at all. And virtual visitation can also be an occasional answer to solving scheduling conflicts (parent is at work while the child is home, but child is at school while the parent is off work, for example.)
Contact Us Today For Immediate Help
At San Diego Divorce Attorney, we have the deep-seated experience and legal training it takes to win for you and your child the best possible outcome to your upcoming child custody and visitation hearing.
We have helped protect the rights of parents, children, and those falsely alleged to be the parent of a child, in San Diego and throughout Southern California, for many years - and we stand ready to put our legal skills and determination to work for you, as well, on a moment's notice.
To learn more or for a free consultation on the details of your case, call us today at 858-529-5150.